CTHFCA
National Australia Bank Limited, in the matter of Collins (a bankrupt) v State of Queensland
[2020] FCA 1889
Federal Court of Australia|2020-12-02|Before: Reeves J
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Source factsCourt
Federal Court of Australia
Decision date
2020-12-02
Before
Reeves J
Source
Original judgment source is linked above.
Judgment (2 paragraphs)
[1]
- Pursuant to s 133(9) of the Bankruptcy Act 1966 (Cth), the estate in fee simple in the land described as Lot 28 on Survey Plan 200517, Title Reference 50725973 being the land situated at Unit 28, 40-65 Gledson Street, North Booval in the State of Queensland (the North Booval Property) vest in the applicant for the purpose of it exercising its powers as mortgagee under the Land Title Act 1994 (Qld), the Property Law Act 1974 (Qld) and registered mortgage 711954249 (the Mortgage).
- On the vesting of the North Booval Property in the applicant, pursuant to s 133(9) of the Bankruptcy Act 1966 (Cth), the applicant: (a) may, but is not bound to, deal with the North Booval Property as if it were exercising its powers as mortgagee in possession under the Land Title Act 1994 (Qld), the Property Law Act 1974 (Qld) and the Mortgage, including exercising the right to sell the estate in fee simple of the North Booval Property in exercise of its power of sale and all its other respective rights under the Mortgage; (b) for the purpose of selling the estate in fee simple of the North Booval Property in exercise of its power of sale, is not required to serve: (i) a notice of default or demand whether under s 88 of Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) or otherwise; and (ii) a notice pursuant to s 84 of the Property Law Act 1974 (Qld); (c) is entitled to calculate the entirety of each of the debts secured and owing pursuant to the Mortgage as including all monies that would have been secured by the Mortgage had the Trustee in Bankruptcy of the bankrupt estates of Mr Micheal Craig Collins and Mrs Tracey Leeanne Collins not disclaimed the North Booval Property, and to deduct and retain for its own absolute use and property such amount from any proceeds of sale of the North Booval Property as if it were money secured by the Mortgage (including costs of this application and all costs properly incurred in selling, and incidental to the sale of, the North Booval Property); (d) will apply the proceeds of sale from the North Booval Property as follows: (i) Firstly, in payment of any outstanding statutory charges and body corporate debts (if any) affecting the North Booval Property, regardless of whether statute provides that they are payable in priority to the mortgagee. (ii) Secondly, in payment of all costs, charges and expenses properly incurred by the applicant as incidental to the sale, or any attempted sale, or otherwise. (iii) Thirdly, in discharge of the debt owed to the applicant by Mr and Mrs Collins as secured by the Mortgage and to the extent that the proceeds of sale arise from the North Booval Property. (iv) Fourthly, in payment of any subsequent mortgages (if any). (v) Fifthly, any surplus proceeds from the sale of the North Booval Property are to be paid to the Trustee in Bankruptcy of the bankrupt estates of Mr Collins and Mrs Collins as if the Trustee had exercised the power of sale pursuant to the Mortgage. If, when any surplus funds become available, the Trustee has ceased to be appointed over the bankrupt estates of Mr Collins and Mrs Collins, surplus proceeds will be paid to the Crown in right of the State of Queensland. (e) must, after any sale of the North Booval Property, provide an account of its payments and receipts to: (i) the Trustee in Bankruptcy of the bankrupt estate of Mr Collins; (ii) Mr Collins; (iii) the Trustee in Bankruptcy of the bankrupt estate of Mrs Collins; (iv) Mrs Collins; and (v) the respondent.